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Murder trials may be retried due to judge’s errors

Retired Superior Court Justice Eugene Ewaschuk, centre left, in 2004. Ewaschuk presided over four trials that could be heading for long and costly new trials due to what lawyers say was a “reversible error." (BERNARD WEIL / Toronto Star file photo)

At least four murder cases — including that of convicted Eaton Centre shooter Christopher Husbands — could be heading for long and costly new trials due to what lawyers say was a “reversible error” committed by the same judge during jury selection.

Last year, the Court of Appeal ordered a new trial for Chad Noureddine and Richard Sheridan, convicted of second-degree murder by a jury in the brutal beating death of Andre “Red” Pelliccione. The court agreed with the accused men’s lawyers that there was a “fatal flaw” in the composition of the jury.

“I would hold that this court (the jury) was improperly constituted to try the appellants,” wrote Justice David Doherty, regarded as the court’s top criminal law jurist, on behalf of a unanimous three-judge panel. “The verdicts must be quashed for that reason alone.”

The decision could impact the ultimate outcome of the Husbands case — to be heard by the appeal court at a later date — and two others, potentially leading to new trials. Lawyers estimate that a typical murder trial can last four to six weeks or more, and cost well over $100,000.

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Retired Superior Court Justice Eugene Ewaschuk, who declined to comment for this story, presided over the four trials.

At issue is the centuries-old method used in Canadian courtrooms to select a jury when the Crown or defence makes a “challenge for cause,” which often means determining whether the jurors are able to judge the accused without bias.

Prior to 2008, the only way to do that was to select two names from the jury pool, who become known as the “triers.” They then listen to a prospective juror being asked whether they can decide the case without bias and then approve them to sit on the jury based on the response.

Once the two triers have found a prospective juror to be impartial, and as long as the Crown and defence take no issue with that person, he or she becomes a sworn member of the jury and takes the place of one of the two triers.

The process of questioning the next potential juror is repeated using the remaining trier and juror No. 1 as triers. Once approved, the second juror takes the place of the remaining trier. There are now two sworn members of the jury and the two original triers are dismissed.

Those two jurors decide on the impartiality of juror No. 3. After that person is selected, jurors No. 2 and No. 3 decide on juror No. 4, and then 3 and 4 decide on 5, and so on until 12 jurors are selected, hence the term “rotating triers.”

Parliament amended the Criminal Code in 2008 to allow for “static triers” — meaning the same two people pick the entire jury — but only if the defence asks for it.

Sheridan’s trial lawyer requested rotating triers, but Ewaschuk denied that application, which led to the Court of Appeal overturning the convictions and ordering a new trial.

Doherty, the appeal court judge, explained in his ruling that using “rotating triers avoids the risk that the entire jury selection process could be tainted by a single static trier who is unable or unwilling to properly assess the partiality of prospective jurors.”

Sheridan’s appeal lawyer, Michael Lacy, said he doesn’t believe Ewaschuk’s error was due to a lack of understanding of the law.

“This was not a judge presiding over his first jury trial,” said Lacy. “I wouldn’t suggest he didn’t understand what the Criminal Code said. Justice Ewaschuk is a very bright man, very thoughtful. I think notwithstanding what it said, he was of the view that he could create his own modified procedure.”

The lawyer for Christopher Husbands, the Eaton Centre shooter convicted of murdering two men in 2012, told the Star he made it clear to Ewaschuk during jury selection that he did not want static triers, but the judge imposed that method anyway. That decision is one of the case’s grounds of appeal.

“He said during the course of his discussion, he seems to really like the idea of static triers,” said Dirk Derstine. “I think he thought that static triers were very efficient and saved time.”

Lawyers have pointed out that when rotating triers are used, the entire jury pool is often asked to leave the courtroom, so they don’t hear the challenge for cause question ahead of time.

That means that every time a new juror is sworn in, they must be instructed by the judge on their role as a trier, which makes the selection process a bit lengthier — an extra day at the most, say lawyers.

“At the end of the day, it doesn’t really matter, the Criminal Code says you can only have static triers if the defence applies (for it),” said Derstine.

He said he even raised a recent British Columbia Court of Appeal decision highlighting that fact, but said Ewaschuk was “unimpressed.”

Ewaschuk also imposed static triers over the protests of defence counsel in at least two other murder trials: that of Devon Vivian and Anthony Grant, convicted in a drive-by shooting, and Emmanuel Owusu-Ansah, convicted of killing the mother of his two children.

Vivian and Grant’s case was heard by the Court of Appeal earlier this month, while Owusu-Ansah has filed a notice of appeal.

The latter’s lawyer, Scott Reid, described his reaction to Ewaschuk’s decision in one word: Resignation.

“He was a judge who very much did things his own way,” he said. “He’s not afraid to let the Court of Appeal correct him.”

Known among criminal defence lawyers as “Tex” — for “Texas Justice” as well as for his penchant for wearing cowboy boots to court — Ewaschuk left the bench last year after 32 years of service, having reached the mandatory retirement age of 75.

Having earned a salary of $308,000 a year as a judge, Ewaschuk is now collecting an annual $205,000 pension.

A former Crown attorney, he presided over numerous murder trials in Toronto during a lengthy judicial career, developing a reputation for doing things his own way in his courtroom and for sometimes making off-the-cuff remarks that led to admonishments from the Court of Appeal.

The court found in 2007 that his exchanges with the parties in an extradition hearing over the definition and origin of the term Roma were “unfortunate and not pertinent.”

“It doesn’t appear that he belongs to a band of Gypsies who live in — and this may be a bad stereotype — who go from town to town in wagons and such, or even caravans of cars,” Ewaschuk was quoted in The Globe and Mail as saying of a Hungarian man fighting extradition.

A defence lawyer even tried unsuccessfully to have Ewaschuk remove himself from a murder trial in a famous courtroom showdown in 2005, arguing the judge was biased against defendants.

Even in retirement, Tex is still getting plenty of attention.

Four murder verdicts under microscope

Eugene Ewaschuk has presided over at least four murder trials where lawyers said he imposed static triers during jury selection.

Chad Noureddine and Richard Sheridan

Last year, the Court of Appeal ordered a new trial for Richard Sheridan, seen here in this court sketch, and Chad Noureddine, convicted of by a jury in the brutal beating death of Andre “Red” Pelliccione. (Alex Tavshunsky)

“More mercy has been shown to dying animals,” Ewaschuk said of the fatal attack for which the accused were sentenced to life in prison, after being convicted of second-degree murder. The pair allegedly beat the victim, Andre “Red” Pelliccione, an armoured car robber, with fists, kicks, rocks and a cement block, smashing his head to a pulp. Three other accused pleaded guilty to manslaughter.

Christopher Husbands

Christopher Husbands, in a court sketch, he was sentenced in 2015 to life in prison with a parole ineligibility period of 30 years for shooting up the Eaton Centre food court in 2012. (Marianne Boucher)

Found guilty of second-degree murder, he was sentenced in 2015 to life in prison with a parole ineligibility period of 30 years for shooting up the Eaton Centre food court in 2012, killing Ahmed Hassan, 24, and Nixon Nirmalendran, 22, as panicked crowds fled. Among the injured was 13-year-old Connor Stevenson. Husbands testified in his own defence, saying he had no recollection of the shooting.

Devon Vivian and Anthony Grant

Anthony Grant, left, and Devon Vivian were convicted for a second time in 2013 of second-degree murder.

The two were convicted for a second time in 2013 of second-degree murder in the death of 19-year-old Jose Hierro-Saez in a drive-by shooting. Their original convictions were overturned by the Court of Appeal due to some of the jury instructions from the first trial’s judge.

Emmanuel Owusu-Ansah

Emmanuel Owusu-Ansah was convicted of second-degree murder in the brutal stabbing death of Bridget Takyi.

He was convicted of second-degree murder in the brutal stabbing death of Bridget Takyi, the mother of his two children, who had previously told police that Owusu-Ansah had threatened to kill her. Her body was burned beyond recognition. Ewaschuk described Owusu-Ansah as “depraved” when he sentenced him to life with a parole ineligibility period of 22 years.

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